[The following report was issued by International Crisis Group on 8 October 2012.] 

Afghanistan: The Long, Hard Road to the 2014 Transition 

Executive Summary

Plagued by factionalism and corruption, Afghanistan is far from ready to assume responsibility for security when U.S. and NATO forces withdraw in 2014. That makes the political challenge of organising a credible presidential election and transfer of power from President Karzai to a successor that year all the more daunting. A repeat of previous elections’ chaos and chicanery would trigger a constitutional crisis, lessening the chances that the present political dispensation can survive the transition. In the current environment, prospects for clean elections and a smooth transition are slim. The electoral process is mired in bureaucratic confusion, institutional duplication, and political machinations. Electoral officials indicate that security and financial concerns will force the 2013 provincial council polls to 2014. There are alarming signs Karzai hopes to stack the deck for a favoured proxy. Demonstrating will to ensure clean elections, at least, could forge a degree of national consensus and boost popular confidence, but steps toward a stable transition must begin now to prevent a precipitous slide toward state collapse. Time is running out.

Institutional rivalries, conflicts over local authority, and clashes over the role of Islam in governance have caused the country to lurch from one constitutional crisis to the next for nearly a decade. As foreign aid and investment decline with the approach of the 2014 drawdown, so, too, will political cohesion in the capital. To ensure political continuity and a stable security transition, action to correct flaws in the electoral framework and restore credibility to electoral and judicial institutions is needed well before the presidential and provincial council polls. Tensions have already begun to mount between the president and the Wolesi Jirga (the lower house of the National Assembly) as debate over electoral and other key legal reforms heats up. Opposition demands for changes to the structures of the Independent Elections Commission (IEC) and Electoral Complaints Commission (ECC) and an overhaul of the Single Non-Transferable Vote (SNTV) election mechanism have become more vigorous by the day.

There is also, as yet, no sign of an agreement on the timing of the 2014 elections or the following year’s parliamentary elections, though President Karzai insisted on 4 October that the former would be held on time and “without interruption.” The IEC has hedged on publicly announcing the planned postponement of the provincial council polls, for fear that such an announcement could deepen the political crisis. At a minimum, the IEC must announce a timetable and a plan for the 2014 elections that adhere closely to constitutional requirements by December 2012, and a new IEC chairman must be selected to replace the outgoing chairman, whose term expires in April 2013, as well as a new chief electoral officer.

It is a near certainty that under current conditions, the 2014 elections will be plagued by massive fraud. Vote rigging in the south and east, where security continues to deteriorate, is all but guaranteed. High levels of violence across the country before and on the day of the polls are likely to disenfranchise hundreds of thousands more would-be voters. The IEC will likely be forced to throw out many ballots. This would risk another showdown between the executive, legislature, and judiciary. Under the current constitution and electoral laws, the government is not equipped to cope with legal challenges to polling results. Nearly a decade after the first election, parliament and the president remain deeply divided over the responsibilities of constitutionally-mandated electoral institutions. The IEC, its credibility badly damaged after the fraudulent 2009 and 2010 elections, is struggling to redefine its role as it works to reform existing laws. There is also still considerable disagreement over whether the ECC should take the lead in arbitrating election-related complaints.

It will be equally important to decide which state institution has final authority to adjudicate constitutional disputes before the elections. The uncertainty surrounding the responsibilities of the Supreme Court versus those of the constitutionally-mandated Independent Commission for the Supervision of the Implementation of the Constitution (ICSIC) proved to be a critical factor in the September 2010 parliamentary polls. The Supreme Court’s subsequent decision to establish a controversial special tribunal on elections raised serious questions about its own impartiality. Institutional rivalries between the high court and ICSIC have increased considerably since then, with the Wolesi Jirga aggressively championing the latter’s primacy in opposition to the president.

The tug of war between these two constitutionally-mandated institutions has extended to Supreme Court appointments; two of nine positions on the bench are held by judges whose terms have already expired, and the terms of three more expire in 2013. The ICSIC faces similar questions about its legitimacy, since only five of its required seven commissioners have been appointed by the president and approved by parliament. Ambiguities over the roles of the Supreme Court and the constitutional commission must be resolved well before the presidential campaign begins in earnest in early 2013. An important first step would be to appoint the required judges and commissioners.

Institutional rivalry between the high court and the constitutional commission, however, can no more be resolved by presidential decree than it can by a simple parliamentary vote. Constitutional change will ultimately be necessary to restore the Supreme Court’s independence and to establish clear lines of authority between it and the ICSIC. Even if wholesale constitutional change is not possible in the near term, legal measures must be adopted within the next year to minimise the impact of institutional rivalry over electoral disputes and to ensure continuity between the end of Karzai’s term and the start of the next president’s term.

Although Karzai has signalled his intent to exit gracefully, fears remain that he may, directly or indirectly, act to ensure his family’s continued majority ownership stake in the political status quo. This must be avoided. It is critical to keep discord over election results to a minimum; any move to declare a state of emergency in the event of a prolonged electoral dispute would be catastrophic. The political system is too fragile to withstand an extension of Karzai’s mandate or an electoral outcome that appears to expand his family’s dynastic ambitions. Either would risk harming negotiations for a political settlement with the armed and unarmed opposition. It is highly unlikely that a Karzai-brokered deal would survive under the current constitutional scheme, in which conflicts persist over judicial review, distribution of local political power, and the role of Islamic law in shaping state authority and citizenship. Karzai has considerable sway over the system, but his ability to leverage the process to his advantage beyond 2014 has limits. The elections must be viewed as an opportunity to break with the past and advance reconciliation.

Quiet planning should, nonetheless, begin now for the contingencies of postponed elections and/or imposition of a state of emergency in the run up to or during the presidential campaign season in 2014. The international community must work with the government to develop an action plan for the possibility that elections are significantly delayed or that polling results lead to prolonged disputes or a run-off. The International Security Assistance Force (ISAF) should likewise be prepared to organise additional support to Afghan forces as needed in the event of an election postponement or state of emergency; its leadership would also do well to assess its own force protection needs in such an event well in advance of the election.

All this will require more action by parliament, less interference from the president, and greater clarity from the judiciary. Failure to move on these fronts could indirectly lead to a political impasse that would provide a pretext for the declaration of a state of emergency, a situation that would likely lead to full state collapse. Afghan leaders must recognise that the best guarantee of the state’s stability is its ability to guarantee the rule of law during the political and military transition in 2013-2014. If they fail at this, that crucial period will at best result in deep divisions and conflicts within the ruling elite that the Afghan insurgency will exploit. At worst, it could trigger extensive unrest, fragmentation of the security services, and perhaps even a much wider civil war. Some possibilities for genuine progress remain, but the window for action is narrowing.

Recommendations

To assure a peaceful political transition in 2014

To the Independent Elections Commission (IEC):

• Announce no later than December 2012 a date for the 2014 presidential election and publicly outline a realistic timetable for the launch of a new voter registry program.
• Conduct jointly with the ELECT II support program of the UN Development Programme (UNDP) a feasibility study on modifying the voting mechanism to include a mixed system that combines proportional representation with the Single Non-Transferable Vote (SNTV) system as an interim step; and undertake an evaluation of prospects for a gradual move to full proportional representation by 2019.

To the Parliament:

• Reach internal consensus before April 2013 on reforms to the electoral law and the law on the structure of the IEC; negotiate a compromise with the president on such critical issues as seat allocations for nomadic tribal groups (kuchis) and women and a move to a mixed voting mechanism; and use this period also to revise areas of the law that will impact the presidential election, as well as to restore credibility to key institutions such as the IEC and the Electoral Complaints Commission (ECC).
• Clarify the roles of the Supreme Court and the ICSIC both in law and in practice by August 2013; adopt amendments to the 2008 law on the mandate and functions of the ICSIC that further outline its role in interpreting the constitution; work with the president to strike a swift compromise on candidates to replace judges with expired and expiring terms on the Supreme Court by August 2013, so that it has a full complement for the crucial year of 2014.

To the international community, in particular the U.S., European Union (EU), UK, International Security Assistance Force (ISAF) and other main donor institutions:

• Maintain aid commitments in support of the election, contingent on the Afghan government meeting key benchmarks for reform; consider, if benchmarks are not met, withholding related funding so as to spur the Afghan government to action; and coordinate better, including with the UN Assistance Mission to Afghanistan (UNAMA), their support for elections.
• Begin contingency planning immediately to ensure adequate security for the necessary number of voting centres, as well as for the possibility that elections are postponed and/or a state of emergency is declared before or during the 2014 presidential campaign; US military leaders in ISAF and political leaders in Washington should be especially wary of the temptation to allow the military drawdown to dictate the pace and shape of the presidential, provincial council and parliamentary polls.

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